Citation Nr: 0533864
Decision Date: 12/15/05 Archive Date: 12/30/05
DOCKET NO. 91-20 632 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to an increased (compensable) rating for
residuals of hemorrhagic fever.
2. Entitlement to an increased (compensable) rating for
residuals of a concussion.
3. Entitlement to an increased (compensable) rating for
residuals of pulmonary tuberculosis (PTB).
4. Entitlement to a higher initial disability rating for
post-traumatic stress disorder (PTSD), rated as 10 percent
disabling from March 24, 1989, to March 19, 1997, and as 50
percent disabling since March 20, 1997.
5. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Steven Nardizzi, Attorney
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty from September 1951 to
October 1954.
This case came to the Board of Veterans' Appeals on appeal of
an October 1989 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in New York, New York.
In February 1992, March 1994, and May 1996, the Board
remanded the case to the RO for further development. By a
September 1997 Board decision, special monthly compensation
for completely arrested pulmonary tuberculosis was denied,
and the other issues were remanded for further development.
By a July 2001 rating decision, a 30 percent rating for PTSD
was granted for the period beginning March 20, 1997. In
November 2001, the RO denied a TDIU.
In December 2002, the Board granted entitlement to a 50
percent rating for PTSD effective March 20, 1997, and denied
compensable ratings for hemorrhagic fever, residuals of a
concussion, and PTB. The Board remanded the issue of a TDIU.
The veteran appealed the Board's December 2002 decision to
the U.S. Court of Appeals for Veterans Claims (Court). By an
August 2003 Order, the Court vacated the December 2002 Board
decision and remanded the matter to the Board for further
action.
In March 2005, the veteran's claims were remanded in order to
fulfill the veteran's request for a hearing before a Veterans
Law Judge.
Additional evidence was received after the issuance of an
August 2004 statement of the case, and prior to certification
of the veteran's claims to the Board. None of this evidence
relates to the severity of the veteran's residuals of
hemorrhagic fever. Accordingly, RO review of this evidence
is not required prior to the Board's adjudication of the
veteran's claim for a compensable rating for residuals of
hemorrhagic fever.
The issue of entitlement to a TDIU, and the issues of
entitlement to increased ratings for PTSD, residuals of a
concussion, and for residuals of PTB are addressed in the
REMAND that follows the order section of this decision.
FINDING OF FACT
The veteran has no current residuals of hemorrhagic fever.
CONCLUSION OF LAW
The schedular criteria for entitlement to a compensable
rating for residuals of hemorrhagic fever are not met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.88b, Diagnostic
Code 6310 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2005), provide that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. They also require VA to notify
the claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.
The Board also notes that the Court has held that the plain
language of 38 U.S.C.A. § 5103(a) (West 2002), requires that
notice to a claimant pursuant to the VCAA be provided "at the
time" that, or "immediately after," VA receives a complete
or substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. at 121. However, the Court also stated that
the failure to provide such notice in connection with
adjudications prior to the enactment of the VCAA was not
error and that in such cases, the claimant is entitled to
"VCAA-content complying notice and proper subsequent VA
process." Id. at 120.
The record reflects that the veteran was provided the
required notice by means of a June 2004 letter from the
agency of original jurisdiction. Although the originating
agency did not specifically request the veteran to submit any
pertinent evidence in his possession, it did inform him of
the evidence that would be pertinent and that he should
either submit such evidence or provide VA with the
information and any authorization necessary for VA to obtain
the evidence on his behalf. Therefore, the Board believes
that the veteran was on notice of the fact that he should
submit any pertinent evidence in his possession.
The Board also notes that the veteran's VA treatment records
have been obtained and that the veteran has been provided
appropriate VA medical examinations. Furthermore, the
veteran has provided testimony before the undersigned
Veterans Law Judge. The veteran has been accorded ample
opportunity to present evidence and argument in support of
the appeal and he has done so. Neither the veteran nor his
attorney has identified any outstanding evidence that could
be obtained to substantiate the claim. The Board is also
unaware of any such outstanding evidence. Therefore, the
Board is also satisfied that VA has complied with the duty to
assist requirements of the VCAA.
Following the provision of the required notice and the
completion of all indicated development of the record, the
originating agency readjudicated the veteran's claim. There
is no indication in the record or reason to believe that the
ultimate decision of the originating agency would have been
different had complete VCAA notice been provided at an
earlier time.
In sum, the Board is satisfied that the originating agency
properly processed the claim after providing the required
notice and that any procedural errors in the development and
consideration of this claim by the originating agency were
insignificant and non-prejudicial to the veteran. See
Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the
Board will address the merits of the claims.
Factual Background
The veteran's claim for an increased rating for hemorrhagic
fever was received in March 1989.
A VA examination was conducted in June 1989. The veteran
reported a 35-year history of pain in the low back with
arthritis. He also complained of vertigo, recurring
dizziness, blurred vision, nausea, decline in agility, pain
in the chest area, noises inside of his head, and a skin rash
due to Korean hemorrhagic fever. He also questioned whether
his pulmonary tuberculosis was the sequelae of Korean
hemorrhagic fever. The pertinent diagnosis was history of
hemorrhagic fever (1953) with complete recovery; no present
evidence of residual effects.
A VA examination was conducted in March 1992. The veteran
stated that he had hemorrhagic fever in Korea in 1952 and
that he was hospitalized with fever and back pain for two
months. He claimed that the hemorrhagic fever was actually
the result of biological warfare. He stated that he had
pulmonary tuberculosis in 1953. He also noted that he
sustained a concussion in 1953. An X-ray report notes that
the veteran's pulmonary tuberculosis had been inactive for 40
years. The diagnoses were pulmonary tuberculosis, inactive,
and history of hemorrhagic fever.
A VA systemic conditions examination was conducted in July
1994. The veteran stated that he was exposed to the Hanta
virus also known as Korean hemorrhagic fever. He complained
of low back pain and psoriasis. The examiner found psoriatic
scales on the extension surfaces of the fingers and elbows.
The diagnoses were hemorrhagic fever by history (1953),
psoriasis, pulmonary tuberculosis by history, and history of
hepatitis A.
In a letter dated in December 1994 a VA examiner stated that
he reviewed the veteran's claims file and the literature
submitted by the veteran pertaining to Korean hemorrhagic
fever. He noted that the veteran contracted Korean
hemorrhagic fever in Korea but that he apparently recovered
fully and there is no evidence of hypertension or renal
disease as sequelae of Korean hemorrhagic fever.
A hearing before a member of the Board was conducted in
September 1996. The veteran testified that he probably did
not have pulmonary tuberculosis but that the symptoms were
the residuals of his Korean hemorrhagic fever. He also
believed that hemorrhagic fever was responsible for a great
amount of casualties during the Korean Conflict and that the
disease was the result of biological warfare conducted by
either the Chinese or the Americans.
In December 1997 the veteran submitted several articles
related to the Hanta virus and/or hemorrhagic fever. These
articles define the condition and describe its symptoms,
signs, diagnosis, prophylaxis and treatment.
A VA infectious diseases examination was conducted in April
2001. The examiner noted that the veteran contracted
tuberculosis in 1954, it was treated, there was no
reoccurrence of the condition, and he was asymptomatic. The
examiner noted a questionable history of Korean or Hanta
hemorrhagic fever. The pertinent diagnoses were history of
pulmonary tuberculosis in 1954, treated, unclear history of a
febrile disease while in Korea, no sequelae found.
VA outpatient records dated from April 1992 to July 2004
reveal no residuals of hemorrhagic fever.
At the August 2005 hearing before the undersigned, the
veteran testified that he did not have any physical symptoms
that a doctor has related to hemorrhagic fever.
Analysis
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (2005). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2005).
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but also where the
anatomical localization and symptomatology are closely
analogous. 38 C.F.R. § 4.20 (2005).
The evaluation of the same disability under various diagnoses
is to be avoided. 38 C.F.R. § 4.14. Where there is a
question as to which of two evaluations should be applied,
the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for
that rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2005).
The veteran's hemorrhagic fever residuals are rated by
analogy to syphilis and other treponemal infections pursuant
to the criteria found in Diagnostic Code 6310 of the Rating
Schedule. Under those criteria, such infection is rated for
complications of the nervous system, vascular system, eyes or
ears (see Diagnostic Code 7004, syphilitic heart disease;
Diagnostic Code 8013, cerebrospinal syphilis; Diagnostic Code
8014, meningovascular syphilis; Diagnostic Code 8015, tabes
dorsalis; and Diagnostic Code 9301, dementia associated with
central nervous system syphilis). 38 C.F.R. § 4.88b,
Diagnostic Code 6310 (2005).
The criteria for evaluation of infectious diseases, immune
disorders, and nutritional deficiencies were amended during
the pendency of the veteran's appeal, effective July 31,
1996. See 61 Fed. Reg. 39875 (July 31, 1996). The criteria
for the rating of syphilis were still found in Diagnostic
Code 6310. Pursuant to the criteria in effect prior to July
31, 1996, syphilis was rated for the tertiary complications
of nervous system, vascular system, eyes or ears, or other
Diagnostic Code (e.g., 7000, 5002, 8105). 38 C.F.R. § 4.88b,
Diagnostic Code 6310 (1996).
The Board notes that the new rating criteria are
substantially similar to the old rating criteria, amending,
in pertinent part, only the cross-references. In any event,
although the veteran has reported many complaints, the
medical evidence consistently indicates that he has no
residuals or complications of hemorrhagic fever and that the
disorder has been inactive and asymptomatic throughout the
period of this claim. Accordingly, the Board finds that the
preponderance of the evidence is against the claim.
ORDER
Entitlement to a compensable rating for residuals of
hemorrhagic fever is denied.
REMAND
In September 2004, prior to certification of the veteran's
claims to the Board, the veteran submitted additional private
medical evidence pertinent to his claim for an increased
rating for residuals of a concussion. The RO has not issued
a supplemental statement of the case showing consideration of
this evidence. The RO must be given the opportunity to
review this evidence and issue a supplemental statement of
the case prior to Board review of the claim for an increased
rating for residuals of a concussion.
The veteran seeks an increased rating for residuals of
pulmonary tuberculosis. His most recent VA examination for
determining the severity of the residuals of pulmonary
tuberculosis was performed in April 2001. Since that
examination the veteran has developed lung disability and has
been prescribed inhalers for treatment of his lung
disability. A current VA pulmonary examination is indicated
to determine whether this recently developed lung disability
is related to the veteran's service-connected pulmonary
tuberculosis.
The veteran also seeks an increased rating for his PTSD. The
veteran has not had a VA examination of his PTSD disability
for rating purposes since April 2001. At that time the
veteran's PTSD symptoms were only noted to be moderately
disabling. Since that time the medical evidence regarding
the severity of the veteran's PTSD symptoms has been
conflicting. A current VA examination showing the current
nature and extent of the veteran's PTSD disability is
indicated.
With regards to the veteran's claim for a TDIU, the Board
notes that this claim is inextricably intertwined with the
increased rating claims and this issue must be deferred until
those claims have been readjudicated. Furthermore, the
veteran has not been provided a VCAA notice letter with
regard to his TDIU claim, and such notice must be provided.
Accordingly, the case is REMANDED to the RO or the Appeals
Management Center in Washington, D.C. for the following
actions:
1. The RO or the AMC must send the
veteran a letter providing appropriate
VCAA notice in response to his claim for
a TDIU, to include notice that he should
submit any pertinent evidence in his
possession.
2. The RO or the AMC should request the
veteran to provide any pertinent evidence
in his possession, not already of record,
and to either provide a copy of any other
records pertaining to treatment or
evaluation of his concussion, PTB and
PTSD disabilities since July 2004, or
provide the information and any necessary
authorization to enable VA to obtain the
records on his behalf.
3. Then, the RO or the AMC should
attempt to obtain a copy of all pertinent
records identified but not provided by
the veteran. In any event, the RO or the
AMC should obtain a copy of all pertinent
VA outpatient and therapy records for the
period since July 2004. If the RO or the
AMC is unable to obtain a copy of any
pertinent evidence identified by the
veteran, it should so inform the veteran
and his representative and request them
to provide a copy of the outstanding
evidence.
4. Then, the veteran should be afforded
a VA psychiatric examination to determine
the current severity of his PTSD. All
indicated studies and tests should be
performed, and all manifestations of the
veteran's PTSD should be identified. The
examiner should assign a GAF score based
solely on the veteran's service-connected
PTSD and provide an explanation of the
significance of the score assigned. The
claims folders must be made available to
and reviewed by the examiner.
5. The RO or the AMC should arrange for
the veteran to be afforded an examination
by a physician with appropriate expertise
to determine the nature and etiology of
any pulmonary disability present. All
indicated studies should be performed.
The claims folders must be made available
to and reviewed by the examiner. The
examiner should identify all current
residuals of pulmonary tuberculosis and
all functional impairment resulting from
the disability. If the veteran is found
to have any other pulmonary disorder, the
examiner should provide an opinion as to
whether there is a 50 percent or better
probability that the disorder was caused
or chronically worsened by the service-
connected pulmonary tuberculosis. The
rationale for all opinions expressed
should also be provided.
6. The RO or the AMC should then review
the claims file to ensure that all of the
above requested development has been
completed. In particular, the RO or the
AMC should ensure that the VA examination
reports comply fully with the above
instructions, and if not, it should take
corrective action. See Stegall v. West,
11 Vet. App. 268 (1998).
7. The RO or the AMC should also
undertake any other development it
determines to be warranted.
8. Then, the RO or the AMC should
readjudicate the veteran's claims. The
RO should consider whether any claim
should be referred to the Director of the
VA Compensation and Pension Service for
extra-schedular consideration under
38 C.F.R. § 3.321(b)(1) (2005). If any
benefit sought on appeal is not granted
to the veteran's satisfaction, the
veteran and his representative should be
provided a supplemental statement of the
case and afforded the requisite
opportunity to respond before the case is
returned to the Board for further
appellate action.
By this remand the Board intimates no opinion, either factual
or legal, as to any ultimate conclusion warranted in this
case. No action is required of the veteran until he is
otherwise notified but he has the right to submit additional
evidence and argument on the matters the Board has remanded.
See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs